The prohibition on dismissal during illness means that an employer may not terminate the contract of a sick employee by notice during the first two years of incapacity. It is the best known of the prohibitions tied to a particular circumstance.
Legal basis
Article 7:670(1) of the Dutch Civil Code contains the prohibition and the two-year period. Paragraph 10 provides that it does not apply where the illness begins after the UWV has received the dismissal request. Article 7:670a(1) disapplies the prohibition where the employee refuses without proper grounds to cooperate in reintegration and the employer has warned them in writing and stopped the salary. Article 7:670a(2)(d) provides that on termination of the activities of the entire business the prohibitions in paragraphs 1 to 4 lapse, except for an employee on pregnancy or maternity leave. Where only part of the business closes, paragraph 3 keeps the illness prohibition in place. Article 7:671b(6) contains the corresponding bar on termination by the court.
How it works in practice
The prohibition covers notice, not every form of ending. A settlement agreement remains possible, although it is risky for an employee during illness because of their benefit entitlement. Termination by the subdistrict court is also possible where the application is unconnected with the illness, for instance in cases of seriously culpable conduct. After two years of incapacity the prohibition lapses and notice can be given with UWV permission.
Where it goes wrong
Employers try to disregard a sickness report because it followed an announced dismissal meeting; that only helps if the request had already reached the UWV. A second error is confusing part of a business with the whole on a closure. Third, employees forget that the prohibition does not apply during the probationary period or on summary dismissal.
Related terms
The prohibition connects to the sick pay obligation, the Gatekeeper Improvement Act and termination by the court.
Are you threatened with dismissal while ill? Our employment law specialists assess whether the prohibition protects you.
